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GTC

The following General Terms and Conditions (GTC) serve as mutual protection and include all obligations that we also enter into towards customers. Unfortunately, no mandate can therefore take place without their acceptance. If you have any questions, please contact your project manager at our company.

§ 1 SUBJECT MATTER AND SCOPE OF APPLICATION

  1. The subject matter of the subsequent GTC shall be all ideas, concepts, images, texts, designs and other work results, whether protected by copyright or not, which are provided and/or produced by DGM Kommunikation GmbH – hereinafter referred to as the ‘Agency’ – for customers or presented to potential customers – hereinafter referred to as the ‘Client’ – within the framework of a presentation pitch.

  2. The GTC shall be an integral part of every contract concluded with the Client, unless otherwise agreed upon in writing in individual cases.

  3. Deviating terms and conditions of the Client shall only become part of the contract if they have been acknowledged by the Agency in writing. This shall also apply if the Client's terms and conditions of business and/or delivery have not been expressly objected to.

§ 2 AGENCY SERVICES

  1. The Agency shall provide its services based on a separate contractual agreement with the Client.

  2. The Agency's range of services includes in particular the following consulting, design, and production services:

  • Market-strategic, advertising-technical and advertising-technical consulting in all questions of corporate communications and product advertising
  • Formulation of advertising objectives based on the communication goals agreed upon with the Client
  • Development of texts and design of drafts (rough layouts) for all print media (advertisements, posters, brochures, catalogues, folders and others)
  • Conception, development, design, production and project management for advertising measures in digital media, including internet and intranet
  • Conception, development, design, production and project management for interactive media
  • Determination of the most economical production processes and methods
  • Selection of suitable suppliers and specialists
    Order placement after approval by the Client; coordination and monitoring of the proper and timely execution; invoice control and payment processing

§ 3 CLIENT SERVICES

  1. The Client shall voluntarily provide the Agency with all data and information on marketing objectives, markets, products and services required or useful for the Agency's work. The Agency is obligated to treat such data and information as strictly confidential.

  2. The Client shall grant approvals in a timely manner so that the working holiday of the Agency and its suppliers and thus the contractual realisation of the communication measure is not impaired; the Client shall bear any additional costs and/or quality risk arising as a result of approval not being duly granted or refused.

  3. The Client assures that all materials which it makes available to the Agency within the framework of the provision of services for use in accordance with the order are free of third-party rights.

§ 4 AWARDING OF CONTRACTS

  1. The basis of the Agency's activities is the briefing by the Client. If the briefing is given orally, the Agency shall prepare a briefing protocol. This shall become a binding working document; in this respect, the regulation on meeting minutes in § 7 paragraph 1 shall apply accordingly.

  2. Prior to the commencement of any work incurring costs, the Agency shall submit a cost estimate to the Client in written form. If no order is placed after extensive briefing and costing work, the Agency reserves the right to charge 10% of the scope of services

  3. Order placement:

  • The Client places the order with the Agency by approving the cost estimate. As a rule, approval shall be given in writing. If provided verbally, it shall be recorded in a meeting protocol.

  • The Agency shall award production orders to third parties in its own name and for its own account after approval by the Client. The Agency monitors the production and checks the result.

§ 5 THE AGENCY SHALL INVOICE THE SERVICES AS FOLLOWS:

  • One third when the order is placed
  • One third with the first concept or result presentation
  • One third after completion

§ 6 AGENCY REMUNERATION

  1. The fee for all services provided by the Agency shall be agreed upon within the framework of cost estimates approved by the Client. The current rates of remuneration in the Agency's price list at the time of performance shall apply as the basis for calculation. For approved cost estimates, a deviation of +/ – 10 per cent shall be deemed to be covered by the approval, unless otherwise agreed to in writing.
  2. All material, organisational and other external costs incurred resulting from a service provision shall be passed on to the Client with the enclosure of receipts without charging an Agency commission, unless expressly agreed to otherwise.
  3. If the Client changes or cancels work commissioned outside the scope of the ongoing service, the Client shall reimburse the Agency for the costs incurred up to that point and/or time spent including any costs incurred for expenses and/or provisions, and indemnify the Agency against any third-party claims that may arise, in particular from the Agency's contractors. If the alteration or discontinuation of the work is due to a breach of duty on the part of the Agency or its surrogates, any costs and fees incurred shall not be reimbursed.
  4. All remuneration paid by the Agency shall be subject to the statutory sales tax applicable at the relevant time at which the service is rendered.
  5. The invoices issued by the Agency to the Client bosed on an approved cost estimate shall be due and payable upon receipt and without any deductions.

§ 7 COOPERATION AND CONFIDENTIALTY

  1. The work entrusted to the Agency shall be subject to confidentiality and agreement with the Client. The Agency shall prepare a written record of such discussions and forward it to the Client without delay. These protocols shall be deemed to be commercial letters of confirmation. Agreements and orders contained therein and the other contents shall be binding if and to the extent that the Client does not contradict them in writing within three working days.
  2. The Agency shall treat in strict confidence all information and documents of which it becomes aware in the course of its cooperation with the Client and not intended for distribution to third parties. It shall impose the same obligation of confidentiality on employees and third parties who receive such information or documents for the performance of work under a contract.
  3. In the same way, the Client shall treat information, documents and data received from the Agency as well as ideas, concepts, images, texts and designs presented to them by the Agency not in the public domain as strictly confidential.
  4. The obligation of confidentiality shall apply for the duration of the respective concluded contract.

§ 8 LIABILITY AND WARRANTY

  1. The Agency shall be liable to the Client within the framework of the concluded contract for the due diligence of a prudent businessman. The liability of the Agency and its representatives and surrogates for slightly negligent breaches of duty is excluded – the except for breaches of other contractual obligations (so-called cardinal obligations); injury to life, limb and health; claims arising from a guarantee or from the Product Liability Act.

  2. Insofar as the Agency, its representatives and surrogates are liable in purusant to the above provision in paragraph 1, the liability shall be limited to compensation for the foreseeable and contractual damage according to the type of service.

  3. The Agency shall inform the Client in due time of any apparent legal risks associated with the content or implementation of planned communication measures. If the Agency deems it necessary to have the measures legally examined by a person or firm with special expertise, the Client shall bear the costs after consultation. If the Agency has indicated concern and the Client nevertheless insists on the rejection of the communication measure, the Agency shall not be liable for any resulting disadvantages and claims. The Client shall indemnify the Agency against third-party claims upon first request.

  4. The Client's claims for damages shall expire in one (1) year. The statue of limitations begins when the respective claim for damages arises and the Client is aware or grossly negligent in not being aware of the grounds for the claim and the person of the injuring party. Irrespectively, the claim for damages expires three (3) years after the infringement date.

§ 9 RETENTION, ARCHIVING AND RELEASE OF DATA AND DOCUMENTS

  1. All documents, printed matter, films and publications produced by the Agency for the Client shall be kept by the Agency for a period of one (1) year without any special remuneration. The Agency shall, without any special compensation, select the appropriate measures to be taken for a period of one (1) year, coinciding with the appointment of the relevant committee, and shall hand them over to the Client upon request during this period. After the expiry of the selection period or, in the event of the end of the contract, before the expiry of this period, the items shall be handed over to the Client at the latter's request or, if not, refused. The aforementioned documents may also be stored in digital form. The Client shall bear the costs of the data compilation, shipping, packaging, the storage beyond the agreed upon period and, if applicable, transport and shipping as well as the associated expenses for activities and insurances.
  2. Any documents no longer required, such as measurement scripts, sketches, drafts of unrelated advertising measures or similar, may be discarded by the Agency.
  3. As a matter of principle, data shall only be released to the Client or third parties commissioned by the Client in closed, non-editable files. If the Client wishes to receive open files, this requires a written agreement and separate remuneration. The Client shall not have a claim to the surrender of source codes and the corresponding documentation; these shall remain with the Agency.

§ 10 RIGHTS OF USE

  1. Transfer
  • All rights of use to the work results of the Agency freely granted and paid for by the Client for advertising use, whether or not they are protected by copyright, shall pass to the Client to the extent required by the purpose of the respective order pursuant to § 4 of these GTC. The Agency shall fulfil its obligations by granting exclusive rights of use in the contractual territory for the media envisaged by the contracting parties in each case in the order and for the duration of use of the advertising measures. Any use beyond the above provision shall require the Agency's separate consent.
  • The rights of use to freely paid and paid work results of third parties (e.g., to graphics) as well as the rights of performance protection of third parties are transferred by the Agency to the Client to the extent necessary for the implementation of the contractually agreed upon communication measures. If, in individual cases, these rights are restricted in terms of time, space, content or type of use, and the transfer is therefore not possible to the extent described above, the Agency will inform the Client of this and proceed in accordance with the Client's instructions; any additional costs arising as a result shall be borne by the Client. The Agency shall not assume liability for statutory claims of authors for any subsequent increase in remuneration pursuant to §§ 32 and 32a of the Copyright Act; the Client shall indemnify the Agency against such claims upon first request.
  • The assignment or licensing of the rights of use by the Client to third parties requires prior written consent from the Agency in order to be valid. Excluded from this is the assignment or licensing to subsidiary or affiliated companies within a group of companies.
  • If the Agency creates electronic programmes or parts of programmes within the scope of its contractual services, the respective source code and the corresponding documentation shall not be subject to the granting of rights to the Client.
  • Not subject to the granting of rights to the Client are services of the Agency (concepts, ideas, drafts, etc.) rejected or discontinued by the Client or not used within six (6) months of handover. These rights of use shall remain with the Agency, as do the existing property rights.
  • If the Agency does not receive an order after a presentation has been made (e.g., in a pitch), the other party shall not be authorised to use the presented idea and presented work results of the Agency, whether they are protected by copyright or not, either in whole or in part, either itself or by handing them over to third parties. In this case, the Agency shall also be entitled to put to use the presented idea and the conceptual work results in whole or in part elsewhere.
  1. Remuneration
  • The rights of use to the Agency's work results mentioned in § 9, section 1. shall be settled for the duration of the respective contract concluded and for the contract territory with the payment of the remuneration mentioned in § 6 of the GTC.
  • A usage fee shall be agreed upon separately with the Agency for use beyond the respective end of the contract and/or the contract territory and/or for use in other usage types and/or advertising media than those provided for in the contract.

§ 11 SELF-PROMOTION AND COPYRIGHT

  1. The Agency shall be entitled to use its work results or extracts thereof free of charge for the purpose of self-advertisement – even after the end of the contract period.
  2. The Agency shall retain the right to use the original copyright; it shall be entitled to use its logo or other customary label on the Client's advertising material in a decentralised manner and after consultation with the Client on the form if it wishes to make use of the right.

§ 12 FINAL PROVISIONS

  1. All amendments and additions as well as the termination of contractual agreements must be made in writing in order to be valid.
  2. If any provision of these GTC should be or become null and void in whole or in part, the validity of the GTC shall not otherwise be affected. The invalid provision shall be replaced by a provision which, to the extent legally possible, comes closest to the intention of the parties.
  3. In the event of disputes arising from the conclusion, implementation or execution of contracts concluded in each case, the parties agree that Stuttgart shall be the exclusive place of jurisdiction. German law shall apply to the contracts. The provisions of the UN Convention on Contracts for the International Sale of Goods are excluded.

Stuttgart, January 2015